K. J. VAIDYA, J. ( 1 ) THE controversy in this acquittal appeal is who is responsible for acquittal of two accused ? The prosecution Agency for want of prosecution as held by the trial Court ? of the trial Court for `want of fair trial to the prosecution as submitted by the appellant State. ( 2 ) THE above acquittal appeal arises out of the judgment and order dated 3/10/1980 in Criminal Case No. 679 of 1980 passed by the learned J. M. F. C. Rajpipla (for short hereafter referred to as the trial Court) whereby the respondent accused No. 1 Gulamnabi @ Fakir Mohmad and Accused No. 2 Bashirkhan Nawazkhan game to be chargesheeted for the offences punishable under Secs. 453 114 and 506 of I. P. C. came to be acquitted on the very threshold of the trial on the ground of want of prosecution. ( 3 ) BRIEFLY the prosecution case as disclosed from the complaint filed by the complaint Gulamrasul Mohmadbhai Qureshi is that the complainant is doing a business in the name and style of Firoz Cutpiece Centre at Rajpipla. And for this he had taken on rent a house from one Chunilal Motilal Pancholi for being used as a godown by him. On 14/02/1980 the said complainant had gone to Vadodara and Dabhoi to attend some social functions. On 15/02/1980 when he returned to Rajpipla he came to know that the aforesaid two accused persons had broken open the lock on godown and had forcibly entered into it committing a criminal trespass and therefore the complainant approached the said accused persons making grievance for the alleged illegal action whereupon both of them administered threat of death to the complainant by saying do your worst we are not going to handover the possession of the godown and will also dispose of the goods which were lying therein. As a result of this a complaint came to be filed against both the accused on 16/02/1980 before P. S. I. Rajpipla. The police thereafter investigated the case and submitted a chargesheet against the accused persons for the offences under Secs. 453 114 and 506 I. P. C. to stand the trial. ( 4 ) ON the said chargesheet being submitted before the trial Court on 7/04/1980 a Criminal Case No. 679 of 1980 came to be registered and summons were ordered to the accused. 453 114 and 506 I. P. C. to stand the trial. ( 4 ) ON the said chargesheet being submitted before the trial Court on 7/04/1980 a Criminal Case No. 679 of 1980 came to be registered and summons were ordered to the accused. ( 5 ) ULTIMATELY before a trial can actually proceed ahead by examining any prosecution witnesses on the ground of want of prosecution the accused came to be acquitted by trial Court by its judgment and order dated 3/10/1980 giving rise to this acquittal appeal. ( 6 ) MR. D. K. Trivedi learned Addl. P. P. appearing for the State has made the following submission: (i) That the impugned judgment and order of acquittal on face of it is illegal and unjust. According to the learned Addl. P. P. very perusal of the Rojkam makes it abundantly clear that the accused are acquitted not for want of prosecution but they in fact came to be acquitted for want of fair trial to the prosecution. ( 7 ) NOW in order to appreciate the aforesaid contention of learned A. P. P. it is necessary first to have a look at the reasons for acquittal given by the trial Court which are as under: (I) That the prosecution has been given fairly sufficient time to keep their witnesses present after recording the statement and framing the charge of the accused but till today the prosecu- tion has not cared to keep their witnesses present in the Court (II) Hence in the interest of justice and being an old case for want of prosecution the accused are required to be acquitted. ( 8 ) NOW let us see whether the aforesaid reasons given by the trial Court have any substance and are sustainable as borne out from the Rojkam proceedings. For this purpose we will have to refer to the Rojkam proceedings in order to have the truthful account. First of all it appears that the chargesheet came to be submitted before the trial Court on 7/04/1980 and the summonses were ordered to be issued to the accused to remain present on next date that is on 9/05/1980 It appears that the said summons for one reason or the other could not be served upon them till of course 19/06/1980 when they for the first time presented themselves before the Court in response to the said summons. On this date the accused were given the police papers and the case was adjourned for framing charge on 24/07/1980 On the said date the nothings in Rojkam shows the statement of accd. Nos. 1 and 2 came to be recorded and both of them pleaded not guilty. Now it is interesting to note that though on 19-6-1980 case was adjourned for a charge on 24-7-1980 no such charge is framed are found on the record of the case. The case was thereafter adjourned to 22/08/1980 When the case was called out on the said date since the prosecu- tion witnesses were absent though duly served a bailable warrant of Rs. 1000. 00 was issued against them and the case was adjourned to 11/09/1980 On 11th September 1980 when ththe case was called out the notion shows that bailable warrants issued to the Panchas and complainant had not returned and hence a fresh bailable warrant against them was issued. The case was adjourned to 3/10/1980 On 3rd October 1980 the nothothings shows that when the case was called out the bailable warrants of the witnesses had returned unserved. Therefore the learned A. P. P. gave an application for time which was rejected and the trial Court passed an order below Ex. 1 and acquitted the accused for want of prosecution ( 9 ) ON the perusal of the aforesaid Rojkam proceedings it is very clear that by no stretch of imagination it can ever be said that the case was an old one. It is true that the trial Court proceedings began from the day the criminal case came to be registered on the basis of the chargesheet submitted by the police on 7/04/1980 But at the same time it should not be forgotten that it was for the first time that on 19/06/1980 that the accused presented themselves before the Court. Their statements came to be recorded on 24/07/1980 Now so far as the crucial date for examination of the witnesses is concerned the only material date would be 22/08/1980 a date on which for the first time case was adjourned to for evidence. This is the date on which the prosecution witnesses were found to be absent though duly served and hence a bailable warrant came to be issued against the prosecution witnesses. This is the date on which the prosecution witnesses were found to be absent though duly served and hence a bailable warrant came to be issued against the prosecution witnesses. The case thereafter was adjourned to 11/09/1980 Again on 11/09/1980 when the case was called out the bailable warrants to the panchas and complainant had not returned and therefore the fresh bailable warrants were issued against them and case was adjourned to 3/10/1980 Then the matter was called out on 3/10/1980 the bailable warrants to the witnesses had returned unserved. It was under these circumstances that the learned A. P. P. had given an application for adjourning the case to a future date. Now if we peruse the summons issued to one Masidbhai Ismailbhai Shaikh on the back of it it has been stated that on inquiry said Masidbhai was not found out and therefore further adjournment be sought. This endorsement is made by some Police Officer of Rajpipla. Same is a story as regards the summons issued to the complaint. It is interesting to note that the summons to the complainant Gulamrasul Ahmad Qureshi came returned with an endorsement by the Police Officer that on inquiry said person was not found. This part of the evidence is difficult to gulp down and creates a serious doubt about the process serving agency. It is indeed unfortunate that the said agency is not kept under proper control and direction by the trial Court. If that is so one wonders as to how the prosecution can be blamed of want of prosecution. The very fact that the bailable warrant to the witnesses were returned unserved was itself a good ground to adjourn the case to some future date. Not only that but how is it that the trial Court has felt itself powerless to inquire into the matter as to why in the first instance summons to prosecution witnesses did not return and in the second instances why the summons returned unserved. Not only that but how is it that the trial Court has felt itself powerless to inquire into the matter as to why in the first instance summons to prosecution witnesses did not return and in the second instances why the summons returned unserved. Could it not have occurred to the trial Court that the allegations levelled against the accused in the complaint were of a very serious nature; that the complainant must be keen to proceed with the trial; that the complainant was having a shop in the Rajpipla town itself and yet he could not be served with the summons or is it that whatever is to be submitted by the process serving agency is to be accepted as a gospel truth. Does the trial Court always require to be reminded of the provisions contained in Sec. 350 of the Code of Criminal Procedure 1973 which taking stock of such situations regarding the recalcitrant witnesses has made the provision under the said section regarding the summary procedure for punishment for non attendance by a witness ? Does it require to be impressed upon the mind of the trial Court always as to what are its powers when the process serving agency is found playing foul with the administration of justice ? After careful perusal of nothings in Rojkam I am satisfied and therefore I have no hesitation in holding that the case has been disposed of to say the least with an `unholy haste. It can never be said that the prosecution had failed to discharge its duty in keeping the witnesses present. Whatever best within the player of the learned P. P. in charge of the matter has been done. Thereafter the matter was strictly between the Court and the process serving agency. If the Court does not exercise its proper control over the process serving agency the prosecution cannot be solely blamed. How under the circumstances can it be said that the prosecution was given fairly sufficient time to keep their whitenesss present after recording of the statement ? If even after issuance of Bailable Warrant prosecution witnesses did not remain present in the Court the Court should not have felt reluctant to issue Non Bailable Warrant to prosecution witnesses in the interest of justice. If even after issuance of Bailable Warrant prosecution witnesses did not remain present in the Court the Court should not have felt reluctant to issue Non Bailable Warrant to prosecution witnesses in the interest of justice. In any case if Bailable Warrant issued to prosecution witnesses had returned unserved it was the duty of the Court to adjourn the case to future is impressioning upon the process serving agency to do its duty by providing more time. The trial Court has just remained a spectator doing nothing in its power. Under the circumstances it must be held that if this case has failed and accused came to be acquitted it vas not entirely to want of prosecution but the same was doe want of fair trial to the prosecution. It is further interesting to note that having regard to the allegation made in the complaint regarding threat administered of killing the complainant the case will squarely fall within Sec. 506 (2) of IPC for which the punishment provided is 7 years and if that is so it will be warrant triable case. Though the trial Court when the case was called out on 19/06/1980 has made a reference of framing charge on 24/04/1980 what is actually found is merely recording the statements of two accused and their pleading not guilty. Such a short cut approach in disposing of the matter is likely to shake the faith of the people in the administration of justice. Once the Court takes cognizance of the offence and on persual of the record it appears that the allegations made in the complaint are genuine and of the serious nature then as far as possible the Court which in expected to do justice by redressing the wrong must examine the witnesses and documents in support of the allegations made in the complaint and then only on merit record acquittal or conviction. It is very easy to find fault with the prosecution but the Court has got to exercise proper and sound judicial discretion while deciding the cases. The difference between the trial and mock-trial must be present to the mind of trial Court. The Courts should not be oblivious to the fact that beyond the Court room and its compound a calculated and ingenious game to defeat the justice is going on. The difference between the trial and mock-trial must be present to the mind of trial Court. The Courts should not be oblivious to the fact that beyond the Court room and its compound a calculated and ingenious game to defeat the justice is going on. It is but natural that accused who has been rightly or wrongly framed-up in a criminal case makes desperate and frantic efforts to wriggle out from the clutches of law by fair and or foul means. The legal battles are entrusted to the learned Advocates who ate engaged to defend them in the Court but there are cases and cases where accused himself or through his friends relatives and associates carry out extra judicial methods to salvage the situation whereby he can remain out of the reaches of law and Courts. Efforts are made to protract the proceeding before the Court to win over and suborn the prosecution witnesses by coaxing cajoling and browbeating prosecution witnesses or the process serving agency. Graver the offence the greater the aforesaid possibilities. The Court of law doing justice cannot afford to have a child like ignorance. Justice has to be done not only merely with the aid of law books witnesses and arguments but the same is to be done with a human heart concern for the society and watchful eyes full of worldly pragmatism. If this care and awareness is not shown by the trial Court then unwittingly it is likely to fall in a booby trap beset by aforesaid extra judicial agencies out to defeat justice. The rushed up acquittals like one in the present case is hardly doing any justice. Before the Court acquits any accused on the ground of want of prosecution it owes a duty to its own conscience by asking certain questions like whether in the facts and circumstances of the case the prosecution has been given fair and reasonable opportunity to examine witnesses i. e. whether a fair trial to the prosecution is given or not ? and or (ii) whether having regard to the gravity and seriousness of the offence is it a case which can be lightly disposed of ? and or (iii) whether the process serving agency is honestly sincerely and efficiently discharging its duty in serving the process ? and or (ii) whether having regard to the gravity and seriousness of the offence is it a case which can be lightly disposed of ? and or (iii) whether the process serving agency is honestly sincerely and efficiently discharging its duty in serving the process ? and or (iv) if not whether the Court had activated itself and intervened to set things right in cases of service of summons bailable warrants non- bailable warrants when they are either not served or returned unserved be it on accused or the prosecution witnesses ? and or (v) whether the interest of an unrepresented complainant a real aggrieved party for whose benefit of getting justice the whole system of justice has been structurised is let down by play cool attitude of the investigating and prosecuting agencies during the course of trial was present to the mind of the Court or not ? (vi) whether the Court was not committing a blunder in discharging its duty by over and misplaced emphasis on correctionable default of the prosecuting agency missing the real crux the cause of justice ? and or (v) whether by such rushed-up acquittals on the ground of default or non-prosecution (correctionable ones) accused is earning undue illegal advantage of acquittal and the complainant is left high dry and frustrated ? Answer to all these questions has to be referred to and elicited from common sense conscience and statutory provisions in order to have just and correct approach in the matter. When all these questions and answers combine together it becomes what we call it sense of judicial duty. It is only thereafter that a just legal and proper order can be said to have been passed. ( 10 ) MR. M. M. Desai learned Advocate appearing for the accused submits that the offence had taken place years back in the year 1980 and therefore it is neither desirable nor equitable nor in any way in the interest of justice to remand the case to the trial Court. It is not possible to accede to this submission made by Mr. Desai for the simple reason that to accept it would be putting premium over a wrong not only committed by two accused but also by a court. Why a citizen of the country should suffer injustice on account of patently illegal judgment and Order of the trial Court. It is not possible to accede to this submission made by Mr. Desai for the simple reason that to accept it would be putting premium over a wrong not only committed by two accused but also by a court. Why a citizen of the country should suffer injustice on account of patently illegal judgment and Order of the trial Court. And assuming without admitting that the prosecution was lethargic in keeping protect and examining prosecution witnesses on fixed date before the Court why should a citizen suffer an injustice when on the one hand in certain cases he has no direct locus before the Court to ventilate and get redressed grievances as in the system which we have adopted i. e. where the State is in overall charge of the matter (no quarrel with the system) and on the other hand for whatever reasons the said system in a given case short-circuits itself during the investigation or post-investigation and during the trial stage. What control an ordinary citizen a real aggrieved unit of the society has over the powerful investigating and prosecuting agencies. It is this situation which must be very much present to the mind of the Court in deciding criminal cases It is for this reason that becoming procedural and technical while doing justice real aggrieved party is not lost sight of. It is for this reason that in the system which have adopted the Court has to be conscientic of the fact that an individual citizen and society as a whole are the real beneficieries under the Constitution and the system of justice under any legal system of the world. Individually a citizen may not have a direct locus in certain types of cases and those cases may be represented through the State. under the circumstances in a judicial system so structurised the Courts are more or less trustees of these beneficieries. Therefore the question is not as much of finding fault with the system which the Court can not change it but the question is how best to focus and adjust the correct attitude of the Court on an unrepresented aggrieved individual and a society as a whole so that they can get the substan- tive and real justice. Justice is an act divine and the rushed up acquittal or the scribbled judgment is no answer to it. Justice is an act divine and the rushed up acquittal or the scribbled judgment is no answer to it. ( 11 ) IN the result se appeal is allowed. The impugned judgment and order of acquittal passed by the trial Court is quashed and set aside. The matter is remanded to the trial Court with a direction to proceed ahead by affording fair and reasonable opportunity to examine prosecution witnesses and to dispose of the case on merits according to law. Mr. Trivedi learned Addl. P. P. assures this Court that he will instruct the investigating officer as well as the learned P. P. in- charge of the matter to see that the processes are effectively served in order that the witnesses are examined by the Court. Office is directed to send R and P to the trial Court immediately. (KMV) Appeal allowed. .